Bench Memos

Law & the Courts

My First Things Response to John Finnis on Constitutional Personhood

I’m grateful to First Things and to John Finnis for allowing me to continue the conversation/debate over constitutional personhood on First Things’s website. In this response, I offer some additional explanation why I am not convinced that Finnis’s claim for the constitutional personhood of unborn human beings is right, why I do not think that his constitutional claim, even if adopted by the Court, would actually achieve much in practice, and why I think that claim should continue to play only a minor role in pro-life legal strategy.

Readers who haven’t been closely following the back and forth might find Parts I and II of my response to be too much in the weeds, but Parts III and IV should be much more accessible. Here are excerpts from Part III:

Finnis stipulates that the Court “cannot order legislatures to enact laws” and “cannot order prosecutors to prosecute.” But he asserts that if the Court were to embrace his equal protection claim, “[s]tate laws against homicide would in principle apply to killing the unborn by abortion.” Unless the phrase “in principle” is operating as a huge escape hatch, I don’t see why this would be so. The common law treated homicide by abortion separately from homicide by murder, with the latter applying only to persons who had been born alive. In turn, the state statutes that superseded the common law also treated abortion and murder separately, so that a state’s general laws against homicide would not, without more, be understood to apply against abortion.

Finnis points out that a majority of states have in recent decades expanded their laws against homicide to cover feticide, but it appears that most, if not all, such laws forbid prosecution of a person for performing an abortion consented to by the mother….

In short, I don’t think that Finnis is right when he claims that “In no state would there be a sheer vacuum of relevant and applicable law.” I think that there would be many such states. Finnis asserts that if a pro-life prosecutor sought to prosecute an abortionist, “courts would have to allow the prosecution.” But that’s simply not true if there is no law in the prosecutor’s state that the abortionist can be said to have violated….

Beyond simple inaction, recalcitrant states would have plenty of other ways to thwart or evade a Court ruling declaring that the unborn have protections under the equal protection clause. Imagine, say, that a state enacted a law that purported to allow abortion only when the life of the mother was at stake or when she faced a threat of grievous bodily harm. As I read Finnis, such a law might well pass “easygoing ‘rational basis’ equal protection.” But what if the state law also provided that an abortion provider’s certification of a threat of grievous bodily harm would be conclusively presumed to be accurate? Or that the penalty for any violation would be five dollars? Or what if prosecutors made clear that they would not pursue any charges against abortion providers? What could the Court do to coerce fuller compliance?

And here are excerpts from Part IV:

With Justice Brett Kavanaugh’s replacement of Justice Anthony Kennedy in 2018 and Justice Amy Coney Barrett’s replacement of Justice Ruth Bader Ginsburg just last fall, we ought to have six justices on the Supreme Court who are ready to overturn Roe and who are able to do so in a way that will be durable. There is of course reason to be concerned that some of the justices might prove to be too timid. But such a concern cuts even more forcefully against the likelihood of their embracing Finnis’s much more aggressive equal protection theory. Simply put, I do not see how any justice who would be unwilling to overturn Roe could possibly be willing to embrace Finnis’s equal protection theory (which entails overturning Roe and much more). Conversely, the more that the overturning of Roe seems to hinge on adoption of that theory, the less likely it is to happen….

What all this means is that the only plausible path to imminent legal protection of the unborn has as its first step overturning Roe and restoring abortion policy to the states. This first step should not be mistaken as the final goal, nor, of course, does it mean that those of us pro-lifers who endorse this strategy are indifferent to the abortion policies that the states establish. Quite the contrary. We recognize instead that this approach gives us the opportunity that Roe has long deprived us of—the opportunity to persuade our fellow citizens to enact robust protections against abortion and to build a culture of life that might one day lead to a constitutional amendment that prohibits abortion.

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